Terms of use: GenealogyBank

You’ve ponied up your $69.95 for an annual GenealogyBank.com subscription, entered your search terms, clicked on the Search button… and there it is. A wonderful little newspaper clipping from sometime back in the 1800s about your family.

So you joyfully download it, attach it to an email to your family, post it on Facebook and Google+ and feature it in your genealogy blog.

Congratulations.

You’ve just violated the terms of use of the GenealogyBank.com website and, if it chose to, the site could terminate your access.

Terms of use, remember, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.”1

And GenealogyBank.com — one of NewsBank, Inc.’s direct-to-consumer genealogy services — has some very particular terms of use that subscribers need to know. Such as:

• You can only use GenealogyBank “for your personal non-commercial academic, educational and research purposes.”2 This couldn’t be clearer: right at the top of the terms of use, GenealogyBank declares that “This Site is for access and use only by individuals for personal use” and directs others — such as professional genealogists working for clients — to the NewsBank sales department.3

• You can only download “insubstantial portions of the data, for temporary storage.”4

• You are not allowed to “distribute, modify, transmit, reuse, re-post, or use any Content from the Site for any public and/or any commercial purpose(s).”5

Now right up front, be aware that NewsBank candidly admits it wrote the terms of use before the days of social media — before Facebook, before Google+, before there were hordes of us genealogy bloggers out there. And Newsbank has promised to revisit the question of reposting a clipping on social media — not with an eye towards liberalizing it, to be sure, but to make sure the terms are clear.6

So exactly what may end up being allowed may change slightly in the near term. As of right now, however, while sharing a link on a social media site to a find you’ve made on GenealogyBank is permitted7 (if you can figure out how to do it given the subscription issues), but uploading even so much as a single image of a news clipping to Facebook or Google+ is not allowed.

And that also means you can’t send the clipping itself to your family in email, you can’t put it in an article you’ve written, you can’t insert it into that book of family history you’re about to send to the printer, and you can’t use it to illustrate a blog post. Not without specific permission of GenealogyBank and, most likely, at least in some cases, payment of a commercial use fee.

The sum total of what you can do, with attribution of the material to GenealogyBank, is — in words undoubtedly written by NewsBank lawyers — “insert minimal and insubstantial amounts of text excerpts from the Site into the individual licensee’s own work (e.g., articles, essays, books, papers, reports, etc.), provided such insertions into individual licensee’s own work shall not prejudice or diminish any opportunity for NewsBank to license the Site to any other customer or potential customer.”8

What that means is, you can transcribe the text of small amounts of what the clipping says and use that, as long as what you do isn’t going to make somebody else less likely to subscribe to get the whole article. So you can’t get around the no-publication restriction by transcribing a bunch of clippings and using the text rather than the images.

The same is true of your right to download “insubstantial portions of the data, for temporary storage.”9 The lawyers’ version is: “’Temporary Storage’ means the storage of data from the Site that would not reasonably substitute for a comprehensive copy of the Site or any of the documents in the Site database and would not prejudice or diminish NewsBank’s advantage in licensing the Site database for commercial gain.”10

In plain English, that doesn’t mean you need to delete the clipping images from your hard drive after you’ve read them and analyzed them. It realistically means you can keep copies of clippings that relate to your own personal family research as long as nobody else is going to be using your copy instead of buying his or her own subscription.

And note the words “the individual licensee’s own work” in all of this. Professional genealogists doing work for clients aren’t supposed to be playing by this set of rules at all, and it would be considered a violation of the terms of use for a professional to use a regular individual subscription to download an image and provide it to a client in a report.

Instead, professionals doing work for clients should contact NewsBank for pricing that would allow them to use their own GenealogyBank.com account for work with their clients. Alternatively, NewsBank would allow a professional to use a separate account, with a separate subscription cost, for each individual client in the client’s name. A one-month subscription currently runs $19.95.11 NewsBank has no problem if professionals bill clients for the actual subscription cost and, of course, for their research efforts, but any mark-up on the subscription itself would be considered commercial use and prohibited.12

Professionals who teach or lecture need “permission from NewsBank … in order to include a clipping during the course of a public presentation or webinar.”13

Other terms of use are standard boilerplate: any user has to obey the copyright and trademark laws;14 your use of the site is at your own risk and there aren’t any warranties;15 and any disputes will be handled by state and federal courts in Florida (and if you get sued, you agree to be sued in Florida) and Florida law applies.16

Bottom-line:GenealogyBank.com under a regular subscription is for individual personal use only, and users may not republish any of the images. And professionals play by a different — and more expensive — set of rules.

SOURCES

Note: The clipping image used above was screen-captured from a non-GenealogyBank website and altered for purposes of illustration.

60 Responses to Terms of use: GenealogyBank

I am usually very good about reading terms of service and being educated on copyright (though there is always more for me to learn), but in this instance, I hadn’t read the fine print. Makes me think I might want to cancel my subscription since I got it for ALL of my research, not just my own. Seems they are a bit greedy. Do they really think that sharing an article with a client is going to deprive them of significant revenue? Do they think a client is really going to want to pay the extra $20 for news clippings, especially if there is a negative find (which more times than not is what I get from them)?

Every company that provides data obtained from other private providers likely has to pay royalties on the information it presents and its rates are going to be set accordingly. You might want to compare this subscription to, for example, the charge for a single article from some of the individual newspaper archives that charge for copies. Then you have to consider the utility of this site to the utility of other sources for the same information. If it costs you an hour of your time at $20 (or more) to obtain a clipping from microfilm at a library, this might actually prove to be a better choice for the client.

Based on prices I’ve seen clients pay for genealogy research, yes I think clients are willing to pay $20, but it’s probably better to get the annual subscription for them if it looks like they are going to get a lot out of it since it only takes a few times for the annual price to be worth it. On the negative find, a lot of the research done yields negative research and generally speaking, the client has to pay for the time and associated costs (gas, mileage, fees, etc.) regardless of outcome. If the person you hire winds up coming up with a lot more negative time than positive time, time to find a new researcher.

You ask, and answer, your own question. Yes, it is going to deprive them of the $20 times however many clients people are using personal accounts to get around, which is not a small amount of money.

I agree with Judy on the cost issue. You need to do a quick cost benefit analysis, but also factor in what else you could have done with that hour of time. Suppose it only costs you $10 worth of time (half hour if you’re charging $20/hour) to go to the library, but you could have mad at least $15 during that same amount of time. You have lost $5 worth of opportunity.

Perhaps a professional who didn’t mind slightly grey activity could conduct the research on their personal-use account, and if articles were found of use for the client…then purchase the subscription in the client’s name retroactively?

This would prevent charging a client a subscription fee for no information, and provide the extra royalties fee to GenealogyBank/NewsBank for any articles that were of use.

Judy, me either. Grey is not the mark of a professional. If a person is a professional, they’d already have the professional subscription.

If a professional goes grey, they risk losing not only their accreditation and credentials, but client cred. Why should a client trust a professional who has gone grey to provide them with reliable information? If the person crossed the line (and in black/white cases like this, there is no “grey”) to get the information, you can’t trust they gave you reliable information.

I won’t go quite that far, because I think most folks really don’t read the terms of use and really aren’t aware of the restrictions on professional use. And sometimes — witness the issue with Ancestry earlier this year — the terms get changed after someone’s been using a site for a while. (Note: that change didn’t last; professional use of Ancestry.com is allowed.)

This strikes my very non-legal mind as a back door attempt to re-instate “sweat of the brow” copyrights. It seems to me that Genealogy Bank is trying to make you agree in the contract to pretend that they do hold copyright to the material. But I’m not a lawyer, and don’t pretend to be one on the Internet, so I’m almost certainly wrong… but, thank goodness, I have nothing from genealogy Bank on my website, so it doesn’t matter.

Jim, Judy is correct. GB has agreements with whichever newpapers and other resources they get the information from. Those places still hold the copyrights, if not in the public domain, to the work, but they lease (or whatever you want to call it) the rights to GB, who then offer it to you for personal use as defined above.

I’m glad you went over this. I recently read through the TOS because of an article I’m writing for my genealogy society, and they directly impact how I’m approaching writing the article. What you wrote is the conclusion I came up with as well.

I wonder how many subscriptions they lose by such terms of service. I subscribed a few years ago and found very little of interest, so I’m not tempted to go back and look again. But even if I were, I wouldn’t under these terms.

Barbara, I agree with Judy and Linda. These terms are, for the most part, pretty standard fair even if other companies aren’t always so outright and upfront about them.

Aside from fair use limitations, which probably wouldn’t hold up in court, the rest is textbook.

You shouldn’t dismiss them because of these rules or for past experience. There are going to be times when this may be the only place you can find something you’re looking for, or it’s cheaper than other alternatives. Judy hit it on the head earlier with cost. Many people discount the lost time value/opportunity cost and only look at how much it costs in real $. Time has real $ value to you. For me, I look at an hour as worth at least $20 (to as high as $50+ in some cases). If I can spend $20 (plus associated costs: mileage, fees, etc.) and save an hour, it’s usually worth it. That means I can take the hour I saved and use it for something else, be it work related or personal.

I personally agree that letting people see what can be found — within reasonable limits, not folks willy-nilly posting hundreds of clippings on their own websites — is a better marketing strategy. But then again I don’t run that particular circus.

But in reality how could they prove such a thing? I started using this service 15 years ago when it was “Early American Newspapers” and owned by Readex. It was in an academic setting. I searched the papers for any instance of two certain surnames and used the resulting vital records in my research, all of which was published in a scholarly journal. It was properly footnoted of course, but footnoted as it was in the 1990s, long before Elizabeth Shown Mills and Tom Jones changed genealogy by adding 10 sentence footnotes about what type of material and when you saw it. No then it was a simple footnote to the paper in question with a date, publication number, and page number. So how could anyone know that you hadn’t seen the actual paper newspaper? At the university where I was I had the microfilm of the actual newspapers, but the database provided the indexing. In fact, I once read the entire microfilm of the newspaper and later on when this indexed was released double checked my results.

Still and all, if you found a vital record, and you cited it to the newspaper in your article or book, that would be fair use as long as you didn’t use the image.

P.S. Are these rules retroactive? if you gathered all your images and information before NewBanks bought out Readex, is that information yours free and clear?

Rules can’t be enforced retroactively. Your contract at the time was with Readex, not any successor to Readex. So you’re operating under whatever the rules were then.

As far as how would they prove it, to me that’s not the question. It isn’t whether anybody else would know — it’s whether I would know. And whether I want the person I look at in the mirror to be someone who does, or doesn’t, honor her contracts.

I agree with Judy on all her points above. On who would know, if you accessed GB, there’s proof even if you later used the information gained there to get it elsewhere.

In terms of Readex, your old research is safe, but what you can do it with it now depends on a lot of complicated factors. Unless you are wanting to use it for something new, don’t worry about it unless you want to dig through the original terms from Readex and the various changes made after it was purchased.

Judy, Thanks for this information. I have used GenealogyBank for a couple years now. I copy the newspaper article and attach it to my genealogy program. This is my personal use of course. But then if I die, my kids will take over my genealogy data and hopefully continue on with the research. Do I leave directions in my will for them to destroy those digitized images? or is it legal to pass on my research to my heirs including these images? Thanks!

Your personal research then becomes the personal property of your heirs. Do NOT tell anybody to destroy any part of it. Just remember to cite your sources so your heirs can worry about what limits there may be if they ever choose to publish any of your work.

As a friend posted elsewhere, many of these items are copyrighted to begin with and most of those things would violate the copyright holder’s rights who probably isn’t GenealogyBank most of the time.

13 seems a bit much since teaching/lecturing should fall under some form of fair use. Blogging, reviews, and other normally allowed uses should also be allowed there.

I can see not allowing normal social media usage since most of what I’ve seen posted on G+, FB, etc. tends to violate copyright laws on a regular basis.

So, how much does a professional subscription cost?

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And that also means you can’t send the clipping itself to your family in email, you can’t put it in an article you’ve written, you can’t insert it into that book of family history you’re about to send to the printer, and you can’t use it to illustrate a blog post. Not without specific permission of GenealogyBank and, most likely, at least in some cases, payment of a commercial use fee.
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Except for the blog and article comments, most of the rest applies to other subscription services as well. Legally, you’re not supposed to do the rest even though a lot of people still do them.

I think they’d be hard pressed to win a case on anything related to normal blogging, reviewer, article use, and other standard accepted practices for fair use.

I agree with the not being able to charge clients more than the subscription price.

To get professional pricing you need to call NewsBank. There is no one “professional subscription.” As for other uses, this isn’t copyright law; this is contract law. All the copyright issues exist and the law needs to be obeyed, but terms of use can restrict even the use of something that isn’t copyright-protected. Fair use applies only to copyright, not to contract.

Well, didn’t this start a small storm of comments, eh?! Contract law. I’ve got it. I’m much better at reading TOS over the past year or so, and trying to understand the differences in the applicable laws. So much to think of here when planning a family line history, for instance, where there are interesting or specific newspaper articles or small fillers about your ancestors. Thank so much for your very clear explanations – us non-legal genealogy nuts will need to get on top of this issue PDQ. Cheers, Judy.

Yup, you understand it perfectly, Celia. Issue #1 – copyright law: are you violating anybody’s copyright? If not, then issue #2 – contract law: are you within the terms of your contract (terms of use, terms of service) with the place where you got the item?

Dawn, we may be getting some clarification from GenealogyBank in the next couple of days. Apparently the terms of use as written may be more restrictive than the way GenealogyBank actually permits usage in practice. Hold on until they have a chance to explain, please.

I’m not a subscriber to Genealogy Bank. If I put on a blog the text (not an image) of a 19th century–and thus clearly public domain–newspaper article that I acquired elsewhere, would GB still potentially take some sort of action against me?

Not at all, Undine, nothing to be concerned about there. In fact, if you had the clipping itself from another source — microfilm of the newspaper at an archive, for example — then as long as it’s out of copyright, there’s no reason not to use an image of the clipping as well.

Thanks! I’ve been a bit worried about that, because I acquired through my own archival research a couple of newspaper articles from the 1800s that also appear on GB. I was suddenly nervous about what I could/could not do with them.

I’m doing my best to keep up with copyright/contract law, but for those of us without any legal background, it can be a real fog of confusion. I’m really grateful for sites like this that help clarify such issues.

Thank you very much for this article. I had just started (within the last few weeks) to post family history news to my family via Facebook and via an Ancestry Family Tree. Looks like I will immediately have to go back and remove some things.

Now, if I use Genealogy Bank to find a reference, but then I Use Interlibrary Loan or a direct contact to get the actual article from a holding library, is that breaking my contract? Don’t those libraries have the right to provide copies? (Let’s assume pre-1923 here for simplicity’s sake.) I am a librarian and we would certainly assume that patrons could have and share printouts from our microfilm.

By the way, the new FindMyPast site apparently has the same terms. I was all set to sign up and hunt for my Irish relatives when I realized that I wouldn’t be able to share with my family. No point to that, so no subscription.

Restrictive terms of use are very common, Anne. As for using a copy of any article you obtain from anyone else, the only restrictions you’d have to worry about are those put on your use by the library or archive or repository where you got it. Your agreement with website A is not to use content from website A. That contract doesn’t affect how you use content you get anywhere else.

When I decided to “go pro” I reached out to GB because I already had a subscription for my personal work. I re-read the TOS to see how it would impact my business plans. I don’t feel I can reprint our email exchange here but suffice to say that Judy’s comment about the written vs in practice application of the TOS is indeed different.

My interpretation of the conversation is this: I may use my GB subscription for client research but, beyond a citation/link, I may not forward to the client any GB content.

I would urge anyone wishing to use GB for professional work to reach out for TOS clarification via email. I found the response timely and clear. This provides me also with a document trail should there be any question of TOS violation at a later date.

Personally, I would wish that GB would revise their TOS to allow for snippet publication in blogging. I’m quite certain it would push some folks off the fence into their own subscription. If they have good coverage for your time/place it is an invaluable subscription.

This is a bit curious. I came across this post from Genealogy Bank’s own blog where the writer seems to be saying (in the comments) that their articles can be quoted/republished by writers/researchers.

I have excerpted things from GenealogyBank.com from the files of the New Orleans Times-Picayune and its predecessors. What confuses me is that I can do the same thing in the New Orleans library from the same newspapers and, for unauthored pieces over 90 years old, use the images with attribution. How does GenealogyBank claim ownership over the images that the Picayune Publishing Company clearly owns and has owned since 1837? Remarkably, the boxes in which the microfilmed newspapers reside in the N.O. library have Newsbank lables on them but nothing at all about the use of images copied from the films. So, who owns the images?

Each repository that legally owns copies can control the use of its own copies, but not copies owned by anyone else. GenealogyBank can’t stop you from using an image owned by the library. Its terms of use only control your use of copies you obtain from its website.

I think you answered a question that I didn’t ask. Let me re-phrase it. The library does not claim ownership of the Picayune’s images, but GenealogyBank appears to. Their Terms of Use, however, are vague; they state that they own the images but that the original owner might own the images. Under what conditions does GB “own” images from newspapers, especially ones that are still in existence? For instance, if an unauthored article that’s over 90 years old is on GenealogyBank, cannot someone use it as being in the public domain? It just seems odd that they can claim the privilege of ownership when the images exist independent of them.

I did answer your question, Mike, but apparently not as clearly as possible. GenealogyBank owns ITS COPY of the images, it doesn’t and doesn’t claim to own ALL COPIES of the images. If you and I both buy a book, you own your copy and I own mine. After the copyright expires, you can do what you want with your copy but I control what gets done with mine. That’s what GenealogyBank is doing here: controlling what gets done with its copy. Does that help make it clearer?

I understand that GenealogyBank has a copy of something that they do not own on the internet and they charge people for access. They deny them the ability to use that image for reproduction. What I can’t understand, I guess, is how they maintain that something owned by a newspaper corporation is now theirs when they could not have reproduced it themselves without explicit permission from the newspaper (especially if the newspaper is still in existence). Is that what they’re doing, entering into royalty arrangements with newspapers? Someone owns the originals from which GB digitizes them, so how can GB claim copyright-level ownership?

I’m certainly not privy to GenealogyBank’s contracts with providers. However, their terms of use only affect the relationship between themselves and their subscribers. They do own the copy of the image they display. They charge subscribers a fee to see each image and impose restrictions on what subscribers can do with it after they see it. That’s not copyright law, it’s contract law. The copyright they claim is a compilation copyright on their entire website, and they’d have that no matter what the copyright status was of individual images. They’re not claiming copyright in the individual newspapers or images of newspapers printed before 1923.

Gail, just to be clear, at least one blog that I know of is sponsored by GenealogyBank and surely has permission to use the articles as part of the task of promoting the service. Others I’m sure have asked for permission to use specific articles.

I’m entirely confused, given this info, why a discount was just proudly announced as a member benefit to APG — ya know…the Association of *Professional* Genealogists. Has GB made some change to the terms that would make professional use more allowed? I looked through the current terms and did not find anything new in the TOS that seemed different than what you wrote about here. Am I missing something?

APG members are still allowed to use such accounts for our own personal use. And maybe this is a sign that GenealogyBank is at least thinking of easing its written restrictions to match more of what I suspect is its actual “look-the-other-way” practice.

If someone locates an article on Genealogybank and then finds an alternative source for that article, Genealogybank has nothing to say about how this alternative source is used. Genealogybank cannot copyright a Newspaper article from 1901. If I first see a picture of my great grandfather in a newspaper clipping on Genealogybank, and then obtain a copy of that image from the corresponding issue of a newspaper held by another party, Genealogybank has no legal recourse in preventing me from using that resource in any way that this alternative source allows. I cannot be bound by contract to acknowledge Genealogybank’s ownership of an out-of-copyright image or article simply because I first became aware of the data whilst browsing this company’s database.

If Genealogybank attempted to take legal action against me because they claimed I was using information taken from their website, and I could present irrefutable proof that I obtained the information elsewhere, Genealogybank wouldn’t have a case, and I would counter-sue for harassment and extortion.

So the elephant in the room, is why a “professional” genealogist would be rewarding with their subscription fees the corporate genealogy monopolies which have substantially diminished the once free and open genealogical community, creating a climate where many genealogists no longer share their hard won research for fear it will end up on some for-profit corporate data-mining site like Ancestry.

Corporate genealogy discovers and expands our knowledge of nothing. It merely aggregates and distributes (for a fee) pre-existing information, and discourages by its exploitative, parasitic nature the publication of new information. In my opinion, corporate genealogy should be left to kitchen table amateurs, and unapologetically shunned by serious researchers. But I am, admittedly, somewhat of a grouch.

I can understand some of the grouchiness. But… and this is huge to me… my time is worth a great deal to me. So when I look at the time-saving and convenience of being able to do lookups and more online, it’s worth it — and more than worth it — to pay for the subscriptions rather than have to go chase down the non-aggregated, non-distributed sources.